1. This is an appeal from the judgment of Mr. Justice Kania whose decision turns on the construction of a clause of the will of one Bai Meherbai, widow of Burjorji Cowasji Lah, who died on May 23, 1913, leaving a will dated December 19, 1912, whereof she appointed defendants Nos. 1 to 3 and her nephew Jehangir Dhanjibhoy Wadia and her son Ardeshir executrix and executors. The executors and executrix obtained probate of the will on December 12, 1913. Jehangir died on October 19, 1920, and Ardeshir died, on October 1, 1941. Therefore defendants Nos. 1 to 3 are the surviving executors of the will of Bai Meherbai. Defendant No. 4 is the Advocate General of Bombay.
2. Under Clause 11 of the will the testatrix provided that out of her punji a trust for Rs. 25,000 shall be created for the benefit of Ardeshir. The interest on the sum of Rs. 25,000 was to be received by Ardeshir during his lifetime and afterwards the principal amount was to go to such person as Ardeshir may by a will or a writing according to law, give the same to. If Ardeshir did not make such a will or writing, and if he had left behind him a widow or children then, out of the said Rs. 25,000, a sum of Rs. 5,000 was to be set apart for Kirya Kam in connection with Ardeshir and Rs. 5,000 was to be paid in the name of Ardeshir in some charity for the benefit of the Parsis, and the remaining amount was to be distributed among Ardeshir's widow and children according to Parsi law. If Ardeshir left no children behind him and if there should be only his widow and no children surviving him, then the interest on the remaining sum of Rs. 15,000 was to be paid to the widow so long as she remained the widow of Ardeshir, and, after her death or after her remarriage, the principal amount was to be given in some charity for the benefit of the Parsis on condition that the name of Ardeshir should be perpetuated. If Ardeshir did not make a will or writing according to law and if he did not leave a widow or children, then out of the amount of Rs. 25,000, a sum of Rs, 5,000 was to be kept for Kirya Kam in connection with Ardeshir and the rest was to be given in some charity for the benefit of the Parsis on condition that the name of Ardeshir should be perpetuated.
3. Two questions have been raised on the originating summons taken out by the executors for determining the true construction of Clause 11 to which I have just referred and to two other clauses of the will with which we are not concerned in this appeal; and the questions are whether the bequests in favour of charity contained in this will are void : and further, if so, whether the properties, the subject-matter of the bequests, less the sum of Rs. 5,000, directed to be spent for the funeral and obsequial ceremony of Ardeshir Burjorji Lah formed part of the estate of the said Ardeshir Burjorji Lah,
4. Mr. Justice Kania held that Section 118 of the Indian Succession Act, 1925, did not apply and, therefore, the bequest in favour of charity was not void. Section 118 provides :
No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons.
Therefore, under Section 118 the power to bequeath any property to charity is made dependent on two conditions : first, that the will must be executed not less than twelve months before the death of the testator, and, secondly, that it must be deposited within six months from its execution in some place provided by law. Section 118 also provides that the bequest to charity shall be void if these two conditions are not complied with provided the testator has a nephew or niece or any nearer relative and he is alive at the time of the death of the testator. Mr. Justice Kania held that Section 118 does not apply to a contingent bequest. The view that the learned Judge took was that the bequest to charity in this case was dependent upon a double contingency. In the first place, Ardeshir had to die without leaving a widow or children; and, secondly, he was not to make an appointment under the will or writing referred to in Clause 11 of the will. With great respect to the learned Judge I do not see anything in Section 118 to; warrant any restriction or qualification being placed upon it as the learned Judge has done. Any bequest to charity is void under that section unless the conditions laid down therein are complied with There is no doubt that charity in this case claims as a legatee under the will. The title of charity depends upon the fact that a bequest has been made to it by the testator; and before that bequest can be held to be good, the conditions laid down in Section 118 must be complied with. The bequest may be a direct bequest or a contingent bequest. So long as it is a bequest to charity, the words used in Section 118 are wide enough to make it applicable to bequests of any kind. When the testatrix died her son Ardeshir and her nephew Jehangir were alive, and although the will was deposited with the Sub-Registrar within six months of its execution, it was not executed twelve months before her death. Therefore one of the conditions laid down by Section 118 was not complied with, and the bequest to charity is void.
5. [After dealing with the second point arising in the case, the judgment proceeded:
6. As there is no power of appointment and as Ardeshir left no widow or children, the contingencies contemplated by Clause 11 of the will have arisen, and the amount of Rs. 25,000 less Rs. 5,000 would have gone to charity but for the fact that the conditions laid down in Section 118 have not been complied with. The result would be that the amount of Rs. 25,000 less Rs. 5,000 set apart for Kirya Kam must fall into the residue under Clause 13 of the will.
7. The appeal must, therefore, be allowed.
8. The answers to the questions raised by the originating summons will be :
(1) The bequests in favour of charity contained in Clauses 11 and 12 of the will are void.
(2) The properties, the subject-matter of the bequests, or the moneys and securities representing the same, less Rs. 5,000, form part of the estates of Ardeshir.
9. Taxed costs of all parties both of the originating summons and of the appeal-those of the Advocate General and of the executors as between attorney and client-to come out of the estate.
10. I agree.